The wheels are turning, aren’t they?
This question is another arising out of a webinar I recently conducted with EEOC Legal Counsel Carol Miaskoff and Tracie DeFreitas (Job Accommodation Network) regarding the Pregnant Workers Fairness Act (PWFA).
A few weeks back, I addressed whether FMLA medical certification could be requested from an employee who seeks leave due to pregnancy limitations.
Now, let’s talk breaks for lactation. And bottles.
In our webinar, the following question was asked:
We have an employee whose baby will not take a bottle. Does the PWFA require accommodations that will enable the mother to leave work to feed her child (e.g., telework close to daycare, schedule modification, breaks, etc.)?
Thousands of you are screaming “PUMP Act! PUMP Act!”
Your chants are not misplaced. But what does the PUMP Act actually tell us?
Last year, the PUMP Act expanded workplace protections for lactating employees by requiring employers to provide all employees who are nursing with reasonable time and private space to express breast milk. The PUMP Act expands upon a 2010 amendment to the Fair Labor Standards Act (FLSA), which required employers to provide lactating employees who are non-exempt under the FLSA with reasonable break time and a private location (other than a bathroom) to express milk for one year following the birth of a child. This amended law expands this right to cover all employees covered by the FLSA, both exempt and non-exempt.
But the PUMP Act doesn’t really neatly cover instances in which the baby will not take a bottle.
Does the PWFA fit here? Anywhere?
Here, too, it’s tough to wedge this issue under the umbrella of the PWFA. After all, the PWFA covers the “known limitations” of an employee, not the employee’s child who won’t take a bottle. Denying the PWFA request in this instance is technically correct.
But let’s be careful about our response to this kind of scenario.
First, there is an optics issue in refusing to work with your employee on the need for a flexible work arrangement to address the bottle-latching issue. Be sure to assess the risk before you say, “No,” and remember, we are in the human relations business. Before you say, “No,” let’s find an alternative.
Second, don’t forget that the final rule provides that a lactation accommodation can include permitting the employee to nurse during work hours where the child “is in close proximity” to the employee—e.g., when the employee is teleworking or when an employee takes a break to travel to a nearby or onsite daycare facility.”
Of course, this addresses breastfeeding, not bottle feeding. But as we see above, it doesn’t take much to turn a lactation request into a PWFA-protected time away from work, particularly where the child is in “close proximity” to your employee. As such, it’s critical for employers to carefully assess these requests. Deny them at your risk!